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Monday, 21 June 2004

In Bayer Cropscience SA v Agropharm Ltd (18 June, noted in the subscription-only LexisNexis All England ReporterBayer Cropscience, a French company, owned the registered mark PATRIOT for goods designed to kill weeds and vermin. Bayer argued that since 1991 it had continuously and extensively used the mark in the UK. From 1993 Agropharm sold public health insecticide under the name Patriot Flying and Crawling Insect Killer, as well as two other products called Patriot C and Patriot P. Bayer sued for trade mark infringement, alleging either same-mark/same-goods (Trade Marks Act 1994, s.10(1)) or similar-marks/similar-goods-plus-likelihood of confusion (Trade Marks Act 1994, s.10(2)), seeking summary judgment. It was accepted that, if a decisive decision could not be arrived at under s 10(1), consideration of the likelihood of confusion of the average consumer under s 10(2) was not appropriate for summary judgment.

Mr Justice Patten dismissed the application for summary judgment. Although the court could approach the Patriot C and Patriot P signs on the basis that one letter did not make much difference, it was wrong and unwise to decide the case definitively on a summary judgment application when, in order to do so, the court would have to assume what the average consumer would have in mind.

The IPKat agrees that the state of mind of the consumer cannot be second-guessed in summary proceedings, but notes that there has been a spate of cases recently in which, for perfectly goods reasons, the courts have refused summary judgment: this is either because claimants keep applying for it where they shouldn’t or because the courts have become increasingly reluctant to grant it.

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